from the dictating-the-content dept

You know, when it comes to publicity rights, that expansion of law that masturbates celebrity egos like no other, I can laugh it off when we hear from the likes of Lindsay Lohan, Katherine Heigl, and Dan Snyder. I mean, sure they're famous and rich, but they still probably deserve that famous Hitchhiker's Guide designation of "mostly harmless." That their attacks on anyone who dares make even the barest reference to their holy visages typically fail usually serves as enough mental closure in my mind to keep the dogs from barking in my head at night.

Manuel Noriega, the former dictator of Panama, is suing Call of Duty's video games publisher. The ex-military ruler is seeking lost profits and damages after a character based on him featured in Activision's 2012 title Black Ops II. The 80-year-old is currently serving a jail sentence in Panama for crimes committed during his time in power, including the murder of critics.

So let's get this straight: an octogenarian former dictator of Panama, who has been tried and convicted in two separate countries and is currently residing in a prison in Panama, is suing a United States video game publisher over his depiction? Now can we all go ahead and admit publicity rights are ridiculous? And Noriega's suit is a special brand of silly, according to entertainment lawyer Jas Purewal.

"But Noriega isn't a US citizen or even a resident. This means that his legal claim becomes questionable, because it's unclear on what legal basis he can actually bring a case against Activision."

It's strange that we even have to ask the question, isn't it? The same status Noriega enjoys as a public and historical figure is being used to protect his depiction as a public and historical figure. If we allow publicity rights to dominate the public interest in commenting and portraying public figures, even for entertainment purposes, where is that going to end? That Noriega's age puts him perilously close to crossing the line of all of this being applied to the deceased is even more worrisome. Perhaps the families of long-dead historical devils will look to bury their lineage's history in publicity rights law if this sort of thing is allowed to go on unchecked.

from the one-world-one-vision dept

As could probably be expected after its quick trip through the Congress, Panama's 510 Bill became law last Friday, granting its Copyright Office unprecedented power to pursue filesharers directly. But this is only one of several problems with the 510 Bill. The bill goes further than any US law, extending copyright protection to buffer copies and content stored in cache.

Transient copies, such as buffer copies on a computer’s random access memory (RAM), are necessary for a host of streaming services that carry content over the internet to end users. Recognizing a right to exclude such copies, in addition to the ultimate right to distribute the content itself, adds another layer of licensing requirements that can block innovative services (like Netflix or Pandora) from being offered. Many other trade agreements and national and regional laws contain explicit exceptions for “transient” or “incidental” copies necessary for technological or other communications. But the Panama Free Trade Agreement contains nothing of the kind, and neither does Panama’s law. By extending protection to temporary electronic storage, with no clear exception for transient electronic copies – the Panama bill fails to give internet service providers and other businesses the legal certainty they need to enter and maintain operations in Panama’s market.

The law also severely limits fair use, moving from an open-ended clause to a "closed list" system which narrowly defines fair use limitations and exceptions. The US has an open system, much to the chagrin of various content industries. Moving other nations to this more restrictive standard first will make it easier to bring ourselves in line with several other nations sometime down the road.

Users' rights are also being narrowly defined, erasing any trace of "balance" in Panama's copyright law. Between the severely limited fair use, the extension of protection to cover nearly every file that moves through a user's computer during normal internet usage and the government's ability to pursue filesharers with the burden of proof falling to the citizens, the public is left with nearly nothing.

Compare this legislation with Portugal's response to filesharing: a "hands off" approach to non-commercial infringement and the recognition that an IP address isn't necessarily a person. I would imagine that Panama's copyright office won't be interested in making that distinction, not when bonuses are at stake.

Is there a huge cultural difference in play here or is it just varying levels of pressure from content controllers (used to differentiate from content "creators," not all of whom espouse the same view as the industry "representatives")? Up until recently, Spain's view on filesharing was roughly the same as Portugal's, a viewpoint that seemed to draw extra attention (read: "pressure") from the US government and its associated trade organizations.

Colombia pushed through incredibly extreme copyright legislation ahead of a visit from President Obama, ignoring an outraged public which had staged SOPA-style protests during the law's debut months earlier. Spain, like Portugal, also considered filesharing legal, until the US stepped in and rewrote its copyright laws after smacking it around with an appearance on the Special 301 report. Switzerland pushed back against outrageous Hollywood-backed claims about filesharing and is now on The List. Canada recently went through some copyright reform of its own, but apparently not to the liking of the entertainment industry, which has suggested it will simply overwrite the parts it doesn't like with the TPP.

The end result is the US government using protectionist policies to force cultural change on other countries, shifting legislative viewpoints to match up with corporate demands which routinely exceed the severity of our existing laws. In essence, "your culture is wrong." Should the US government be in the business (and it is very much a business) of applying "our" moral standard on other countries, especially when non-conformance is subject to threats implicit and explicit?

It's been stated here before that infringement is not a moral issue, but those pushing for harsher legislation and more enforcement abroad certainly believe it is. Making countries subject to compliance with an arbitrary moral standard (written by certain industries) as a prerequisite for entering an advantageous trade agreement doesn't create copyright converts. Instead, it creates the IP equivalent of "rice Christians" who allow the US to rewrite their IP laws in order to prevent being locked out of beneficial agreements by one of the most prosperous nations in the world. The end result is coerced compliance that runs roughshod over existing IP laws at the expense of their own constituents.

Applying a new moral standard via the institution of new laws that only benefit the industries being catered to sounds a lot like an advantaged group using its governmental patrons to conform the world to its preferred standards. The government of perhaps the most powerful nation in the world at your fingertips is the sort of thing that no industry, no matter how "beleaguered," should ever have at its disposal.

The end result is an entertainment industry occupation by proxy. The limitations enacted in order to enter a free trade agreement put these countries at a severe disadvantage by crippling local tech industries. Opening trade means very little when innovation is thwarted by legislative overreach.

Free trade agreements have great potential to unleash new competition in markets, producing better products and services at lower prices. This assumes, however, that these agreements actually lower barriers to trade.

Unfortunately, due to misaligned priorities and poor drafting, the U.S. Government’s framework for free trade agreements has neglected aspects of U.S. law that are instrumental to a flourishing Internet sector, and in doing so has erected new barriers to tech exports.

The trend of expanding liability and constraining the balancing provisions of copyright law also manifested recently in Colombia. Also responding to a recently enacted Free Trade Agreement with the United States, Colombia hurriedly passed a controversial copyright revision this spring which similarly left little flexibility for technology innovation. The upshot of the copyright law revisions in these countries is to erode certainty and discourage investment by online services, e-commerce platforms, device manufacturers, and ISPs. This is not lowering barriers to market access.

It would be a mistake to understand this as solely an issue affecting U.S. exports, however. In fact, it is a more serious issue for our trading partners, because while U.S. firms may look to more fertile export markets, Colombian and Panamanian firms must survive at home before they can reasonably expand abroad.

An economy stifled by restrictive additions to existing IP laws puts the continuing development in the hands of American special interests who don't actually care whether or not a country thrives as long as their own interests are protected. Sabotaging innovation to protect legacy business models is nothing more than imperialism redefined. The entertainment industry, speaking through the government, is now an occupation force, one that uses "free trade" as a cover for top down dominance of the native population by removing protections, erecting barriers and excluding the affected constituents from the legislative process.

from the Panama's-copyright-office-also-one-step-away-from-a-new-'revenue-torrent dept

It looks as if Panama is set to pass what Andres Guadamuz (Technollama) called the "worst copyright law in history." The 510 Bill grants the Panamanian copyright office the right to pursue filesharers directly and fine them up to $100,000 USD EACH with the money flowing directly back into the copyright office in the form of bonuses for the officials. None of the money flows to the rights holders and those who have been fined can still face civil action from those holding the copyrights.

Is the Minister of Commerce right? Are the international standards implemented by this Act? This Act gives extraordinary power to the administrative organism in charge of the registration, storage, monitoring and inspection of copyright, allowing it to impose fines on infringers, violating the general principles of law as “non bis in idem” and “presumption of innocence”. Can impartiality and justice lead a process of imposing fines, when the beneficiaries of the fines are the functionaries of the organism itself?

Puerta is right. No other country has given the copyright office this sort of unchecked power before. Granting itself the leeway to directly pursue infringers and add the fees collected to the bonus pool is unprecedented. To be sure, "international standards" are being implemented, many of them at the behest of the US government (itself acting at the behest of the MPAA and the US Chamber of Commerce). The worst parts of US copyright law were signed into effect late last year and Panama seems to have taken the "free trade agreement" as a jumping off point, rather than the illogical extreme it actually is.

Rather belatedly, Congressman Jose Blandon asked to make the Act public to "avoid distrust within the population about this law." Well, it's the afterthought that counts, I suppose, but transparency means allowing the public to participate well before the final step of the legislation process. At this point, the bill is two-thirds passed and any input will likely be too little, far too late.

from the somewhere-in-DC,-Lamar-Smith-experiences-inexplicable-arousal dept

From SOPA/PIPA to the Digital Economy Act to ACTA to the DMCA, there's no shortage of bad legislation built to serve various copyright-driven industries. But just when you thought you'd seen the very edge of how far legislators were willing to go, someone comes along and tops it.

The 510 Bill gives new powers to an administrative branch of the Ministry of Commerce and Industry called the General Copyright Directorate (Dirección General de Derecho de Autor, henceforth DGDA). Unlike similar copyright administrative offices around the world, the DGDA will have the power to impose fines on infringers without prejudice of further criminal or civil actions.

It's exactly what it looks like: the Panamanian copyright office is being given the power to chase down filesharers and fine them up to $100,000 PAB ($100,000 USD). In addition, the "without prejudice" portion means that filesharers can still be pursued by rights holders, even if the government has already levied a fine.

The bill goes even further than this astounding bit of rent-seeking:

[T]he DGDA has the power to unilaterally haul any alleged infringer, ask them to mount a defence within 15 days, impose fines of up to $100k USD ($200k for re-offenders), and on top of that this person may still have another civil case against them added to the administrative fine. Adding insult to injury, they also have to pay for the publication of the fine so that everyone knows what a nasty pirate they are.

So, you have a government entity pursuing citizens for copyright infringement (a civil matter, or so it used to be...), an act which opens them up to further civil action from the rightsholders. With this kind of enforcement, the Panamanian creative industries should be rolling in extracted filesharer dough. Or so you would think, if this bit of wording wasn't present in the bill:

The funds accrued by the General Copyright Directorate from the fees for the services it provides and the fines imposed in the exercise of its powers, will be aimed at improving its operational infrastructure and to boost the performance of its officers, complementary to the funds that the State Budget reserves for the operation of the entity[...]. The amounts corresponding to each official, shall not exceed fifty percent (50%) of the total basic salary monthly remuneration.

That's right, none of it goes back to the rightsholders. These fines get fed right back into the system that levied them. Not even back into the government in general, but directly back to the DGDA. Wow. How could that possibly be abused?

This is what I think will happen if the law passes as it stands. The DGDA will immediately try to monitor all torrent use in Panama, be it legitimate or not, and all people identified with IP addresses will be summoned and summarily fined. After all, the institution and its employees will have a direct financial incentive to assume guilt. Then those same people will be sent again and again, as there will be clear incentive to fine re-offenders.

Well, that's sounds like all the fun of copyright trolls combined with the "answer to no one" power of the government all rolled up into big ball of perverse incentives. I suppose the government will turn these filesharers over to the rightsholders once it's drained them of money to toy with the drained corpse through civil proceedings.

Meanwhile, the industries seeking this sort of protection will find that no one has any money left to purchase their products, much less pay off another set of hefty fees. While this may provide the rightsholders with some sort of second-hand vindictive high, it's hard to see how this betters their financial situation in the least.

Technollama calls the legislation "toxic." It is. And more than that, it's completely perverse in every sense of the word. It hooks an agency up to an IV full of money and trusts it not to repeatedly press the "dispense" button. Sure, it may cut down on infringement, but once a government agency is hooked on steady income, it usually comes up with new (and worse) ways to keep the buzz going. The dollar amount of the fines will be ratcheted up and the definition of "infringing activity" will become broader, perhaps encompassing such maximalist wet dreams as embedded video. It's ugly, any way you slice it.

from the booooooooogus dept

For some time now, we've been noting that the US keeps trying to force countries around the globe to put in place protectionist policies that protect American monopolies, and hilariously pretending these are "free trade" agreements. And today is no different. The White House is tooting its own horn for signing three new anti-free trade agreements today, with South Korea, Panama and Colombia, pretending that these are free trade agreements. The reality, of course, is that they are protectionist plans that will do more harm than good to US interests.

While the White House leaves this part out of its patting itself on the back, these agreements all export the worst of US copyright law to these other countries, forcing them to put in place laws that are against their own best interests, and which serve only to falsely prop up the entertainment industry's bad business model. This is why the MPAA and the US Chamber of Commerce are cheering it on so strongly.

And, of course, this is just the beginning. The Treasury Department put out its own blog post celebrating the anti-free trade agreements as well, in which they ominously warn that things are going to get worse, as they "build on" these agreements to get the dreadful Trans-Pacific Partnership signed. As you may recall, the TPP has become the way that the US Trade Rep plans to sneak in everything that it failed to get in ACTA... and it's being even more secretive about TPP than it was about ACTA. It's nothing but a government handout to Hollywood. This is not "historic" and it's not about "free trade." It's about protectionist anti-free trade policies that will do long term harm to US innovation and economic interests. What a disaster.